Know When HITECH Trumps Payer Contracts

With so many Health Insurance Portability and Accountability Act (HIPAA) changes coming down the pike, it’s a great time to look at how privacy and security laws may impact your practice and compliance plan.

In a recent U.S. Department of Health & Human Services (HHS) press release, HIPAA expands the individual rights of patients to their health information. According to the press release, “The final omnibus rule greatly enhances a patient’s privacy protections, provides individuals new rights to their health information, and strengthens the government’s ability to enforce the law.”

CPB : Online Medical Billing Course

This means patients can ask for copies of their electronic health records (EHRs). And when it comes to billing, it also means a patient who wants to pay cash can instruct the provider to not share treatment information with his or her health plan.

Keep Billers Compliant

According to Michael D. Miscoe, JD, CPC, CASCC, CUC, CCPC, CPCO, CHCC, here is why it is important to not bill insurance when a patient pays out-of-pocket:

“Although HITECH does not address billing directly, when a patient pays for a service out-of-pocket and instructs (through an appropriate ‘Restrictions on Uses and Disclosures Form’) that you may not disclose PHI associated with that service for payment or health care operations, you are prevented from submitting a claim since by doing so you would be disclosing PHI. If you chose to bill the service anyway, it would be an unauthorized disclosure constituting a breach. This may subject the provider to a penalty, which could be quite substantial if OCR determines the conduct was reckless (usually due to incomplete or non-compliant HIPAA privacy and security policies). Therefore, when the patient makes such a request, HITECH trumps any perceived contractual duty to file a claim because it can’t be done without violating a federal law. A contractual provision that requires you to violate a law is generally unenforceable.

Usually, the patient is paying cash because the service is non-covered. Most provider contracts as well as the Medicare statute do not require submission of claims for non-covered services on behalf of the beneficiary in any event.”

Under the pre-HITECH regulations, you could ignore the patient’s request not to file the claim. Under HITECH, you cannot.

Practical Advice

If a patient pays in full out-of-pocket and does not want to bill insurance, according to Miscoe, here are the best steps to take to stay compliant with HITECH:


  • Have the patient sign a request that information relative to self-paid services not be disclosed (usually called a Restrictions on Uses and Disclosures Form). Note that self-paid services do not include circumstance where the patient ultimately pays the entire value of the service because of a deductible. The patient’s signed restriction on such disclosures absolutely precludes the provider from submitting a claim for those services. As noted above, the provider is protected from any allegation regarding provider contract breach for not billing by the patient or the carrier, even assuming such an obligation existed.
  • Flag these records somehow so they are not disclosed to the health plan should the health plan make a request. The easiest way is to keep them in a separate file. If that’s not an option, clearly mark the record as “Not for Disclosure for Payment or Health Care Operations.”
  • If you are sending the records to another provider (which is permissible), make sure the provider knows the records cannot be sent to the health plan due to the patient’s request. A big red stamp or other notation saying the records may not be disclosed in response to a carrier’s payment or health care operations request should suffice.

Latest posts by admin aapc (see all)

8 Responses to “Know When HITECH Trumps Payer Contracts”

  1. Kathy Weidner says:

    So I wonder if this also allows a chiropractor, who is mandated to submit all “covered” Chiropractic Manipulative Treatment (CMT) codes when medically necessary, to NOT bill Medicare if they don’t have a valid Medicare number and the patient comes in anyway, wishing to pay cash.

  2. rosalie Wratni says:

    How does this affect a patient who is in a car accident, doesn’t want their premiums to increase, so doesn’t want us to bill their insurance? Without reporting that it was MVA related, and should the patient need further treatment – the insurance (Medicare for example) would not know that this was MVA related, (back pain) and would pay those claims inappropriately in the future. Same could hold true for Workers Compensation – when the patient is working “under the table”, etc.. Are you stating that we don’t have to notify Medicare (or any payer) in these cases? I thought we were obligated to send a claim showing who paid, with a zero balance?

  3. Karen Hill says:

    Kathy and Rosalie, I think you are both missing some of the important information in this notice. HiTech only comes into play in these cases if the patint has signed a “restriction” form. If the patient has not directed you in writing to not bill insurance, than you would follow any existing contractual obligations, such as the one that you mention, Kathy. If the patient signs the form, it would release you from billing Medicare.
    In the case of worker’s compensation or liability insurances (MVA, etc.) if the patient completes the non-disclosure form, you would not be billing Medicare or any other insurance. According to the article, the patient is directing you to not bill insurance. If a patient tells you to bill Medicare and not worker’s compensation insurance or automobile insurance, etc. and you have information that the injury is due to an MVA or on the job injury, you would still be responsible to file the information accurately, indicating the applicable information in box 10 and box 14.

  4. Kathy Weidner says:

    Trust me…I understand completely. You may not be aware that Chiropractors may not opt out of Medicare. Every covered adjustment MUST be billed. Many DCs think that this (a patient directing them NOT to bill Medicare) is a way that they can circumvent the rule that says, “You must bill”. Chiropractors, Independent PTs and Independent OTs are the only groups that can NOT opt out of Medicare so this is a big topic of conversation. This is germane only to DCs who are NOT Medicare enrollees, or who are enrolled, but “tell” the patient they have to pay cash for covered services. Wondered what Mr. Miscoe tells DCs about that.

  5. Sheryl says:

    There would be nothing to bill to Medicare. The patient has to pay for the service before they can choose this option. The payment is part of the rule. You cannot request to not bill unless you pay.

  6. Aubrey says:

    I was also thinking about how this would apply to Medicare since providers are required to bill Medicare if they see Medicare patients unless they have the patient sign a contract in writing before-hand that has to be done each time the provider sees that patient. Providers trying to get around having to bill Medicare will often see Medicare patients on a cash basis. Now I guess the HITECH contract would supercede the Medicare contract and the Medicare contract would no longer be needed. This makes it easier for providers to see Medicare patients on a cash basis without the obligation to bill Medicare. As long as the patients understand that we cannot release their records to any insurance company ever.

  7. Camilla says:

    ABN form, ABN form: ALL covered (allowed) services are to be billed to Medicare UNLESS the patient instructs you not to via the ABN form — Kathy, for the DC’s who have Medicare people, yes, we are (I work/bill for a DC) required to bill all CMT codes, BUT this is where the ABN comes into play. ALL medicare people must (should) sign the ABN directing the provider their wishes as for billing. IF the patient selects option 2 (or B?) THIS is saying DO NOT BILL medicare and “I” understand I have to pay the fee. Then per that form you do not bill medicare. Depending on patient’s instructions via the ABN, use the appropriate modifier if you do bill to indicate if ABN on file or not. (If no ABN on file and service denied, no patient responsibility). goto the site and search more for Chiropractic services (their site is very helpful).

  8. Darleen says:

    Print for Sandy, MBS

Leave a Reply

Your email address will not be published. Required fields are marked *